1998 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

7-6-1998

United States v. Dent

Precedential or Non-Precedential:

Docket 97-1666

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Recommended Citation

"United States v. Dent" (1998). 1998 Decisions. Paper 149.

http://digitalcommons.law.villanova.edu/thirdcircuit_1998/149
Filed July 6, 1998 

UNITED STATES COURT OF APPEALS 

FOR THE THIRD CIRCUIT 

No. 97-1666 

UNITED STATES OF AMERICA 

v. 

MICHAEL DENT, 

Appellant 

ON APPEAL FROM THE 

UNITED STATES DISTRICT COURT 

FOR THE EASTERN DISTRICT OF PENNSYLVANIA 

(D.C. Criminal No. 92-cr-00223-3) 

Argued on October 28, 1997 

BEFORE: SLOVITER, NYGAARD, and KRAVITCH,* 

Circuit Judges. 

(Filed July 6, 1998) 

 Anna M. Durbin (Argued) 

 Law Office of Peter Goldberger 

 50 Rittenhouse Place 

 Ardmore, PA 19003-2276 

 Attorney for Appellant 

_________________________________________________________________ 

* Honorable Phyllis A. Kravitch, Senior Circuit Judge for the United 

States Court of Appeals for the Eleventh Circuit, sitting by designation. 
 Alan J. Chaset 

 Law Offices of Alan J. Chaset 

 910 King Street, Suite 200 

 Alexandria, VA 22314 

 Attorney for Amicus-Appellant 

 Families Against Mandatory 

 Minimums Foundation 

 Zane D. Memeger (Argued) 

 Office of the United States Attorney 

 615 Chestnut Street, Suite 1250 

 Philadelphia, PA 19106 

 Attorney for Appellee 

OPINION OF THE COURT 

NYGAARD, Circuit Judge. 

Michael Dent appeals his conviction for conspiracy to 

distribute crack cocaine in violation of 21 U.S.C. S 841(b), 

alleging that both his conviction and sentence rest on 

legally insufficient evidence. Dent also argues that the 

prosecution's delay in bringing his case to trial violated the 

Sixth Amendment and the Interstate Agreement on 

Detainers Act, and that the district court should have 

permitted him to review the personnel file of his arresting 

officer. We will affirm. 

I. 

Dent's case has a long and dramatic history, which need 

be recounted only briefly for purposes of this appeal. On 

January 19, 1992, Philadelphia police officers Stephen 

Cassidy and Dathon Enoch pursued a suspected drug 

dealer into a local residence. Inside they found Dent and 

two other men seated at a table cluttered with cocaine base 

and drug paraphernalia. The officers arrested Dent and his 

companions, as well as the suspected drug dealer who led 

them to the house. The federal prosecutor took over Dent's 

case from the Philadelphia authorities, but Dent jumped 

bond and fled the jurisdiction before federal agents could 

 2 
arrest him. Because of Dent's fugitive status, delay on the 

government's part and Dent's intervening incarceration in 

New York state for unrelated crimes, he was not tried on 

federal narcotics charges until February 1997, although a 

grand jury indicted him on April 22, 1992. A jury convicted 

Dent of one count of conspiracy to distribute crack cocaine, 

but acquitted him of a related count for possession of a 

controlled substance. As punishment, he now faces 92 

months' imprisonment to be followed by a five-year period 

of supervised release. 

Dent's appeal raises numerous challenges to his 

conviction and sentence. First, he alleges that the

government's delay in bringing his case to trial violated the 

Sixth Amendment's speedy trial provision and the Interstate 

Agreement on Detainers Act ("IAD"), 18 U.S.C. app. S 2. 

Second, he claims that Officer Cassidy's testimony was 

insufficient to prove his participation in a conspiracy to 

distribute crack because the officer could not recall seeing 

Dent personally handle any drugs or drug paraphernalia. 

Next, Dent alleges that the district court should not have 

admitted the cocaine base at trial, since the government 

failed to establish a reliable chain of custody for the exhibit. 

He further argues that the government did not demonstrate 

that the drugs were crack rather than another form of 

cocaine base, and that consequently he may not be 

sentenced under U.S. Sentencing Guidelines Manual 

("U.S.S.G.") S 2D1.1, which imposes a far harsher penalty 

for crack offenses than is applied to crimes involving equal 

quantities of cocaine in other forms. Dent also insists that 

the district court should have permitted him to review 

Cassidy's personnel file, and that had it done so, he could 

have cast doubt on the officer's credibility as a witness. 

Finally, Dent attacks his sentence on the ground that the 

government used an unreliable method to determine the 

amount of crack involved in his crime. We will consider 

each of these arguments in turn. 

The district court had jurisdiction under 18 U.S.C.

S 3231. We have appellate jurisdiction over the district 

court's order under 28 U.S.C. S 1291 and over the final 

sentence under 18 U.S.C. S 3742(a). 

 3 
II. 

We consider first Dent's contention that a prejudicial pretrial delay violated both his Sixth Amendment right to a 

speedy trial and the IAD. We review the district court's legal 

conclusions de novo, but will reverse factual findings only 

if they are clearly erroneous. See United States v. Bierley, 

922 F.2d 1061, 1064 (3d Cir. 1990). 

A. 

The Sixth Amendment guarantees that "[i]n all criminal 

prosecutions, the accused shall enjoy the right to a speedy 

and public trial." U.S. Const. amend. VI. However, "[u]ntil 

there is some delay which is presumptively prejudicial, 

there is no necessity for inquiry into the other factors" 

relevant to whether a pre-trial delay prejudiced the 

defendant. Barker v. Wingo, 407 U.S. 514, 530 (1972). 

Here, the approximately five-year delay between Dent's 

arrest and his trial is sufficiently lengthy to trigger full 

inquiry into the possibility that Dent suffered prejudice as 

a result. See Doggett v. United States, 505 U.S. 647, 651 

n.1, 658 (1992) (observing that most courts find a 

postaccusation delay "presumptively prejudicial" at least as 

it approaches one year); Hakeem v. Beyer, 990 F.2d 750, 

760 (3d Cir. 1993) (fourteen and one-half month delay 

warrants full inquiry into possible prejudice resulting from 

postponement of trial). 

Once the defendant identifies a presumptively prejudicial 

delay in bringing his case to trial, determining whether that 

delay violated the Sixth Amendment requires a highly factspecific analysis that balances all the relevant 

circumstances. In conducting this balancing test, the 

Supreme Court has emphasized four factors: (1) the length 

of the delay, (2) the reasons for delay, (3) whether, in due 

course, the defendant asserted his right to a speedy trial 

and (4) the actual prejudice the defendant suffered as a 

result. See Barker, 407 U.S. at 530. Although we begin our 

analysis with these four factors, we are mindful that none 

is "either a necessary or sufficient condition to the finding 

of a deprivation of the right of speedy trial," and that we 

must consider them together "with such other 

circumstances as may be relevant." Id. 

 4 
Although the first of the Barker factors, the length of the 

delay, weighs somewhat in Dent's favor, it is not 

compelling. Certainly the gap between Dent's January 19, 

1992 arrest and his trial on February 3 and 4, 1997 is 

substantial. However, the seriousness of a postaccusation 

delay varies depending on the circumstances, and a waiting 

period during which the defendant is not detained presents 

fewer concerns than a wait accompanied by pretrial 

incarceration. See id. at 533 (noting serious societal 

disadvantages caused by pretrial incarceration). Dent did 

not endure any significant pretrial detention associated 

with the conviction from which he appeals. We therefore do 

not find the length of the pretrial delay in his case to be 

intolerable. 

More important, Dent's claim stumbles on the second

Barker factor, which requires us to consider whether Dent 

or the government caused the delay. Although both parties 

contributed to the post-indictment delay, it is clear that 

Dent bears the bulk of responsibility in this regard. After 

his arrest, Dent jumped bond and remained a fugitive for 

more than two years. He was listed as a wanted person on 

April 30, 1992 after failing to appear at a state court 

hearing, and, despite diligent efforts, federal agents could 

not locate him until August 1994. Dent argues that he is 

not to blame for this part of the delay, because federal 

agents had not yet arrested him when he fled, and thus he 

did not know of the federal indictment. This argument is 

specious. Dent may not have known that his case had been 

adopted by federal prosecutors, but he certainly knew that 

he had been arrested by Philadelphia police and released 

on bond, and that proceedings had commenced against him 

in state court. As a result, Dent was fully aware of his 

fugitive status when he fled to New York sometime in early 

1992. 

Inexplicably, after learning that Dent was incarcerated in 

New York, the government waited fourteen months before 

taking further steps to bring him to justice. Beginning 

October 17, 1995, however, the prosecution consistently 

sought to have Dent tried in Pennsylvania. On that date, 

prosecutors wrote to the U.S. Marshal Service requesting 

that Dent's arrest warrant be lodged as a detainer with the 

 5 
correctional facility where Dent purportedly was 

incarcerated, only to learn that no inmate named Michael 

Dent was then in residence at that institution. This 

confusion was not resolved until April 1996, when the 

government discovered that Dent was being held at a

different New York correctional institution under his real 

name, Isaac Dennis. On April 26, 1996, the government 

again wrote to the U.S. Marshal Service requesting that 

Dent's outstanding federal arrest warrant be lodged as a 

detainer, this time with the correct New York facility. 

Thus, Dent is wholly responsible for the first 26 months 

of the pre-trial delay, and the government is to blame for 

only 14 months of that delay. Although an additional 13 

months passed before Dent's trial, the government cannot 

be faulted for this lag. By all accounts, the United States 

Attorney's office sedulously attempted to locate Dent in the 

New York penal system after October 17, 1995. Indeed, it 

was Dent's use of an alias, not any neglect on the 

government's part, which largely caused the additional 

delay. 

The third Barker criterion--whether the defendant timely 

asserted the right to a speedy trial--also weighs against 

Dent's Sixth Amendment claim. Dent did not assert his 

right to a speedy trial until June 1996, more than four 

years after his arrest. Although Dent was unaware of the 

federal indictment until that date, he certainly knew that 

narcotics charges were pending against him in Philadelphia 

in connection with his prior arrest, and that he had left 

Pennsylvania just as criminal proceedings against him were 

beginning. Had Dent truly wished to expedite his trial, he 

would have remained in Pennsylvania to be tried, or at the 

very least maintained contact with authorities in that state. 

Moreover, he would not have given arresting officers an 

assumed name or allowed the state court to begin 

proceedings against him using the alias. 

The fourth element under Barker, prejudice to the 

accused, likewise does not indicate a violation of Dent's 

Sixth Amendment rights. Dent contends that the pretrial 

delay prejudiced his defense because witnesses could no 

longer remember important details. Further, Officer Enoch 

retired before Dent's trial and thus allegedly could not be 

 6 
located to testify for the defense. Dent also claims that his 

mother, his stepfather and a codefendant, William Scott, all 

died before the trial and therefore could not testify in his 

defense. In addition, Dent alleges prejudice because he lost 

the opportunity to serve his present sentence concurrently 

with his incarceration in New York. 

None of these allegations of prejudice is convincing. First, 

the passage of time probably helped Dent's case by making 

Sergeant Cassidy's testimony less detailed and therefore 

less convincing. Indeed, one of Dent's principal arguments 

at trial was that Cassidy could not recollect seeing Dent 

personally handle any drugs or drug paraphernalia. 

Second, there is no reason to believe that Officer Enoch's 

testimony would have aided the defense. Moreover, Dent 

has not shown that he seriously attempted to locate Enoch 

for trial. Nor is it likely that William Scott could have 

offered any useful information not provided by Dent

himself, because at all relevant times Scott and Dent were 

seated side-by-side at the crime scene and thus had the 

same opportunity to witness events. Finally, Dent's parents 

could not have provided a credible alibi, because Cassidy 

saw Dent at the crime scene and arrested him there. In any 

event, Dent's mother died in 1993, during the period of the 

delay attributable wholly to Dent's flight from the law. Thus 

Dent, not the government, should bear the burden of any 

loss of evidence caused by her unavailability. 

Of course, "excessive delay presumptively compromises 

the reliability of a trial in ways that neither party can prove 

nor, for that matter, identify." Doggett, 505 U.S. at 655. 

Thus "affirmative proof of particularized prejudice is not 

essential to every speedy trial claim." Id. On the other hand, 

however, this presumptive prejudice certainly "cannot alone 

carry a Sixth Amendment claim without regard to the other 

Barker criteria." Id. Here, the presumptive prejudice from 

the government's fourteen month delay simply cannot

outweigh the other Barker factors, which do not support a 

conclusion that Dent suffered prejudice from denial of a 

speedy trial. Accordingly, and because we find no other 

circumstances relevant to this analysis, we hold that the 

lag between Dent's arrest and trial did not violate the Sixth 

Amendment. 

 7 
B. 

The IAD, which governs resolution of outstanding 

criminal charges against suspects serving sentences in 

other states, also fails to provide Dent a basis for relief. 

Under Article III(a) of the IAD, a defendant must be tried on 

outstanding criminal charges within 180 days after 

authorities receive his or her request for trial. See 18 U.S.C. 

app. S 2, art. III(a); Casper v. Ryan, 822 F.2d 1283, 1285 

(3d Cir. 1987). Furthermore, Article V(c) of the IAD requires 

that an indictment be dismissed with prejudice if trial is 

not commenced within that period. 18 U.S.C. app.S 2, art. 

V(c). 

On April 26, 1996, after finally locating Dent at Mid-State 

Correctional Facility ("Mid-State"), the United States 

Attorney initiated proceedings to secure Dent's return to 

Pennsylvania for trial under Article IV(a) of the IAD. That 

Article permits a prosecutor outside the jurisdiction where 

an inmate is incarcerated to lodge a detainer against the 

prisoner and procure his presence for trial on pending 

criminal charges. Meanwhile, on June 25, 1996, Dent sent 

a letter to the federal district court for the Eastern District 

of Pennsylvania requesting a speedy resolution of his 

outstanding federal charges under the Interstate Agreement 

on Detainers. His letter did not reference Article III, 

however, and did not include the information which that 

Article states must accompany such a request. 

Dent claims that because the government received his 

letter requesting a speedy trial on July 23, 1996, Article III 

required the prosecution to initiate his trial on or before 

January 19, 1997. However, invocation of Article III's 180- 

day time limit generally requires strict compliance with the 

Article's requirements. Nash v. Jeffes, 739 F.2d 878, 884 

(3d Cir. 1984), rev'd on other grounds sub. nom., Carchman 

v. Nash, 473 U.S. 716 (1985). Thus the 180-day period 

does not begin until the inmate "shall have caused to be 

delivered to the prosecuting officer and the appropriate 

court . . . written notice of the place of his imprisonment 

and his request for a final disposition to be made of the 

indictment, information, or complaint." Article III(a). 

Additionally, the request "shall be accompanied by a 

certificate of the appropriate official having custody of the 

 8 
prisoner, stating the term of commitment under which the 

prisoner is being held, the time already served, the time 

remaining to be served on the sentence, the amount of good 

time earned, the time of parole eligibility of the prisoner, 

and any decision of the State parole agency relating to the 

prisoner." Id. Because Dent failed to satisfy these essential 

procedural requirements, we hold that his June 25, 1996 

letter did not start the clock for the government's

compliance with Article III. Instead, the 180-day period 

began to run August 22, 1996 when the prosecution 

learned that Dent wished to proceed under IAD Article III, 

and did not expire until February 18, 1997, well after 

Dent's trial. 

Dent argues that the circumstances of his case require 

us to excuse his noncompliance with Article III. He points 

out that his June 25, 1996 letter invoked the IAD, the 

government already possessed most of the necessary 

information concerning his case and his noncompliance 

was solely the fault of the New York state penal authorities. 

Dent repeatedly asked authorities at Mid-State to provide 

him with IAD forms so that he might resolve the federal 

charges pending against him in Pennsylvania. Yet instead 

of supplying the necessary forms, the authorities 

erroroneously informed him that federal warrants "do not 

fall under the IAD," because it "is solely an agreement 

between states." They further advised Dent that he could 

expedite his trial by writing the United States District Court 

for the Eastern District of Pennsylvania, but that he need 

"not fill out any papers." In doing so, the New York officials 

failed to satisfy Article III(c)'s mandate that"[t]he warden, 

commissioner of corrections, or other official having 

custody of the prisoner shall promptly inform him of the 

source and contents of any detainer lodged against him and 

shall also inform him of his right to make a request for final 

disposition of the indictment, information, or complaint on 

which the detainer is based." 18 U.S.C. app. S 2, art. III(c). 

In Casper, 822 F.2d at 1293, we recognized that "[s]trict 

compliance with Article III may not be required when the 

prisoner has done everything possible, and it is the 

custodial state that is responsible for the default." We also 

explained, however, that an inmate seeking the benefit of 

 9 
this exception nonetheless must "show that s/he 

substantially complied to the extent possible." Id. Dent's 

letter did not include his term of commitment, the time 

already served, the time remaining to be served on his 

sentence, or any information concerning good-time credits 

or parole eligibility as required under Article III. Nor does he 

claim that he could not have supplied these details. 

Instead, Dent notes that when the government received his 

letter on July 23, 1996, it had already obtained most of the 

necessary information through its own efforts to secure 

custody of Dent under Article IV.1 This fact is not

dispositive. As we emphasized in Casper, the inmate's IAD 

request must contain sufficient information to alert the 

government that Article III has been invoked, without 

requiring the prosecution "to analyze each communication 

. . . with a fine-tooth comb to determine whether it should 

be construed as invoking the IAD." Nash, 739 F.2d at 884. 

Under the circumstances, Dent's letter simply was 

inadequate to alert the government that he sought to rely 

on Article III. To hold otherwise would "create`a trap for 

unwary prosecuting officials' and . . . defeat the underlying 

purpose of Article III's procedural requirements. . . ." 

Casper, 822 F.2d at 1292-93 (quoting Nash , 739 F.2d at 

884). 

III. 

We will review together Dent's various challenges to the 

sufficiency of evidence supporting his conviction. We apply 

a particularly deferential standard of review when deciding 

whether a jury verdict rests on legally sufficient evidence. 

"It is not for us to weigh the evidence or to determine the 

credibility of the witnesses." United States v. Voigt, 89 F.3d 

1050, 1080 (3d Cir.), cert. denied, ___ U.S. ___, 117 S. Ct. 

623 (1996) (citation omitted). Rather, we must view the 

evidence in the light most favorable to the government, see 

United States v. Thomas, 114 F.3d 403, 405 (3d Cir. 1997), 

and will sustain the verdict if " `any rational trier of fact 

_________________________________________________________________ 

1. Dent claims that as of July 23, 1996, the government had all of the 

information that Article III(a) requires him to supply, with the exception 

of details regarding good-time credits. See Appellant's Reply Br. at 8. 

 10 
could have found the essential elements of the crime 

beyond a reasonable doubt.' " Voigt, 89 F.3d at 1080 

(quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)). 

Accord United States v. Coleman, 811 F.2d 804, 807 (3d 

Cir. 1987). Thus, "a claim of insufficiency of the evidence 

places a very heavy burden on an appellant." United States 

v. Gonzalez, 918 F.2d 1129, 1132 (3d Cir. 1990) (citation 

omitted). 

The evidence against Dent consisted of testimony by

Dent's arresting officer, statements of a forensic scientist 

who examined the drugs seized during Dent's arrest and 

the cocaine itself. Dent insists that none of this suffices to 

prove beyond a reasonable doubt that he participated in a 

conspiracy to distribute crack. We disagree. 

A. 

Testimony from Dent's arresting officer, Sergeant 

Cassidy, provided the prosecution's principal evidence at 

trial. On the witness stand, Cassidy recounted the following 

events. While patrolling Sharswood Avenue in Philadelphia, 

he and Officer Dathon Enoch observed two men exchanging 

money for several small, unidentified objects. When Cassidy 

and Enoch approached, both men fled. Although the man 

who received the objects escaped, the other, later identified 

as Courtney Golden, entered 5411 Sharswood Avenue and 

attempted to close the door of the residence to prevent the 

officers from following him inside. The three men struggled 

for a moment in a tug-of-war, as Golden sought to keep the 

door shut, while Enoch and Cassidy tried to enter. Golden 

eventually abandoned his hold on the door, fleeing to the 

rear of the house and into the kitchen. Cassidy and Enoch 

pursued Golden into the kitchen where, in Cassidy's words, 

they 

 observed three males sitting at a table inside the 

 kitchen area with numerous drug items on the table. 

 There was a plate, there was a chunk of a -- an off- 

 white chunky substance. There were razor blades, 

 straw. There were vials, some were full. There were 

 vials in bags that were wrapped up and lined out . .. 

 in a straight line . . . about four or five of them. 

 11 
Cassidy observed that "one of [the men] had a razor blade 

in his hand," and based on his fifteen years of experience 

investigating narcotics offenses, he concluded that the three 

men seated at the table, one of whom was Dent, were

"bagging cocaine" for sale. Finally, Cassidy stated that 

Courtney Golden had cocaine in his coat pocket. 

In addition, Tanweer Ali, a forensic scientist from the 

Philadelphia Police Drug Laboratory, testified that she 

identified the substance seized from Dent as cocaine base 

by performing two tests: (1) a Scott's reagent test, which 

yielded positive results consistent with the presence of 

cocaine base, and (2) a gas chromatograph ion test, which 

also indicated the presence of cocaine. Ali also testified that 

the Scott Test is 99.9 percent accurate. 

We find this evidence sufficient to support a reasonable 

inference that Dent and his co-defendants conspired to 

distribute cocaine base. A conviction for conspiracy 

requires proof of "unity of purpose, the intent to achieve a 

common goal, and an agreement to work together toward 

that goal." United States v. Powell, 113 F.3d 464, 467 (3d 

Cir. 1997). The government must prove each element 

beyond a reasonable doubt, but may do so solely by 

circumstantial evidence. See United States v. Barrow, 363 

F.2d 62, 64 (3d Cir. 1966). A reasonable jury could infer 

from Dent's proximity to the drugs and paraphernalia, 

while at least one of the men seated beside him bagged the 

crack, that Dent and the other men conspired to distribute 

cocaine. See United States v. James, 40 F.3d 850, 867 (7th 

Cir. 1994), vacated on other grounds sub nom., James v. 

United States, 516 U.S. 1022 (1995), modified on other 

grounds, 79 F.3d 553 (7th Cir. 1996) (defendant's presence, 

proximity and apparent participation during packaging of 

drugs for street sale sufficed to sustain conviction for drug 

distribution conspiracy, although arresting officer did not 

actually see defendant handle cocaine). A jury also

reasonably could infer from Golden's actions outside the 

house, his flight into 5411 Sharswood Avenue and the 

presence of cocaine in his pockets that Golden had sold 

drugs as part of a conspiracy in which Dent participated. 

Dent's contention that the evidence also permits a less 

sinister conclusion is immaterial. "To sustain the jury's 

 12 
verdict, the evidence does not need to be inconsistent with 

every conclusion save that of guilt." United States v. 

Gonzalez, 918 F.2d 1129, 1132 (3d Cir. 1990) (citation and 

internal quotation marks omitted). 

Dent's reliance on Thomas, supra, and United States v. 

Wexler, 838 F.2d 88 (3d Cir. 1988), is also misplaced. In 

those cases, we explained that a conviction for conspiracy 

to distribute a controlled substance requires evidence that 

the accused knew the conspiracy's purpose was to 

distribute contraband. See Thomas, 114 F.3d at 406 

(insufficient evidence that defendant participated in drug 

conspiracy absent proof that he knew the suitcase at issue 

contained drugs); Wexler, 838 F.2d at 92 (evidence 

insufficient to support drug conspiracy conviction absent 

proof that defendant who acted as a lookout knew he was 

facilitating hashish distribution). In contrast to Thomas and 

Wexler, here the evidence clearly supports the conclusion 

that Dent knew his accomplices intended to distribute 

cocaine base because he watched them package the drugs 

for sale. 

B. 

Dent also claims that the cocaine base was inadmissible 

under Federal Rule of Evidence 901, because the 

government failed to provide a reliable chain of custody. To 

establish a chain of custody, the government need only 

show that it took reasonable precautions to preserve the 

evidence in its original condition, even if all possibilities of 

tampering are not excluded. See United States v. Kelly, 14 

F.3d 1169, 1175 (7th Cir. 1994). Absent actual evidence of 

tampering, a trial court may presume regularity in public 

officials' handling of contraband. See Kelly, 14 F.3d at 

1175; United States v. Jackson, 649 F.2d 967, 973-74 (3d 

Cir.), cert. denied, 454 U.S. 871 (1981). Unless the trial 

court clearly abused its discretion, we must uphold its 

decision to admit the cocaine base into evidence. See 

Jackson, 649 F.2d at 973. 

Here, Cassidy testified that he transported the drugs 

directly from the crime scene to the Narcotics Division and 

observed while laboratory personnel field tested the drugs 

 13 
and assigned them an inventory number. Cassidy's 

testimony also clearly distinguished the drugs seized from 

codefendant Courtney Golden from those found on the

table where Dent was seated at the time of his arrest. Thus, 

Dent's contention that police commingled the evidence with 

drugs taken from other defendants is insupportable.

Moreover, the prosecution showed that the cocaine 

attributed to Dent remained in a locked storage bin and 

was removed only for laboratory testing and for 

presentation in court. At all times, the laboratory

maintained a written record showing who handled the

contraband and when. Although Dent identifies a few

instances when the evidence was placed in a different 

storage bin without the change being entered into the 

record log, these discrepancies affect the weight of the 

evidence, not its admissibility. Moreover, it is clear that the 

drugs never left the lab except when transported for 

proceedings against Dent's co-conspirators. 

Nor is the evidence inadmissible because of a tear in the 

plastic bag holding the vials of cocaine base. The chemist 

testified that this tear could have resulted from handling or 

temperature exposure. Thus, without more, it is insufficient 

to require exclusion of the evidence. The chemist also 

stated that when she tested and weighed the drugs, the bag 

contained no tears. 

Finally, we do not place great significance on variations 

in the witnesses' descriptions of the cocaine. Cassidy's 

description of the contraband at trial as "an off white 

chunky substance" differs only slightly from that on the 

property receipt, which specifies "a white chunky substance 

wrapped in foil" and from Ali's statement that she tested 

"white chunky residue" on a foil-wrapped glass plate. These 

minor discrepancies can be attributed to the inevitable 

differences in human perception, and we will not require 

the police and laboratory chemists to use precisely the 

same words in referring to evidence before it may be 

admitted. 

IV. 

We turn next to Dent's claim that he should not have 

been sentenced under the crack enhancement provisions of 

 14 
U.S.S.G. S 2D1.1, because the government failed to prove 

by a preponderance of the evidence that the substance 

recovered during Dent's arrest was crack cocaine. We 

review for clear error the district court's finding that the 

substance found in Dent's presence was crack, reversing 

only if we are left with a definite and firm conviction that a 

mistake has been made. See United States v. Roman, 121 

F.3d 136, 140 (3d Cir. 1997); United States v. Covington, 

133 F.3d 639, 643 (8th Cir. 1998). 

The crack enhancement provisions of Sentencing 

Guidelines S 2D1.1 apply only if the prosecution proves by 

a preponderance of the evidence that the cocaine-base 

involved satisfies the Guidelines' definition of crack. See 

United States v. James, 78 F.3d 851, 858 (3d Cir.), cert. 

denied, 117 S. Ct. 128 (1996). That definition states that 

" `Cocaine base' for purposes of this guideline, means crack. 

`Crack' is the street name for a form of cocaine base, 

usually prepared by processing cocaine hydrochloride and 

sodium bicarbonate, and usually appearing in a lumpy, 

rocklike form." U.S.S.G. S 2D1.1(c) (Note D) (1995). 

In Dent's case, although a chemist identified the 

contraband as cocaine base, she did not perform a test to 

determine whether it contained sodium bicarbonate, which 

Dent claims would be present in crack. Therefore, the sole 

evidence that Dent conspired to distribute crack rather 

than another form of cocaine base was Sergeant Cassidy's 

statement that the vials in Item 5 contained crack and Ali's 

testimony that crack generally is sold in vials or plastic 

bags. Although police seized six items of evidence from 

Dent and his co-conspirators, the court sentenced Dent 

based only on Items 2, 3 and 5. Cassidy characterized 

these items as follows: 

 Item number two is a clear glass plate with 

 approximately three grams of white chunky substance, 

 cocaine. Item number 3 is 17 clear plastic vials sealed 

 with red caps containing a white substance, 

 cocaine. . . . Item number 5 is five clear plastic 

 sandwich bags containing 23 each clear plastic vials 

 sealed with red caps containing a white substance, 

 crack. 

 15 
Thus Cassidy's testimony indicates only that Item 5

contained crack, rather than another form of cocaine base. 

Ali testified that all of the items contained cocaine base 

and stated only that she "mostly . . . see[s] crack in vials 

and ziplock baggies, and it comes in hard, chunky 

substance form, as compared to cocaine salt that comes in 

chunky powdered form and that can also be packed in

ziplock baggies or heat-sealed baggies or in sandwich bags 

[sic] kind bags." When asked more specifically about 

whether the cocaine base she tested was crack, Ali testified 

that she has "very little experience or no experience at all" 

in distinguishing between different forms of cocaine base, 

and that she could not say whether the substance was 

crack. 

In Roman, 121 F.3d at 141, we held that precise chemical 

analysis is not necessary to prove that cocaine base is 

crack under the Sentencing Guidelines. There, the 

government had tested the cocaine base for traces of 

sodium bicarbonate, but found none. Id. The prosecution 

explained the absence of sodium bicarbonate by presenting 

evidence that if cocaine is cooked carefully, no sodium 

bicarbonate residue will remain in the finished crack. Id. 

Thus, the only evidence that the cocaine base was crack 

was the statement of a twelve-year veteran of the police 

force that it "was packaged in clear plastic vials with color 

caps, which is how crack is commonly packaged in the 

streets of Philadelphia." Id. (internal quotation marks 

omitted). Because the testifying officer had more than 

twelve years of experience with the Drug Enforcement 

Agency task force, had participated in more than 1000 

cases involving crack cocaine, attended training sessions on 

cocaine conducted by the Philadelphia police chemical lab 

and instructed other narcotics officers about identifying 

crack, we found his testimony "just barely" sufficient to 

meet the preponderance of the evidence standard. Id. 

As we stated in Roman, ideally the government should 

aspire to provide a higher quality of proof than offered here. 

Id. at 141 n.4. Nonetheless, we cannot conclude that the 

district court abused its discretion by finding that the 

testimony of Cassidy and Ali satisfied the prosecution's 

burden of proof. Cassidy worked for the police force slightly 

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longer than the officer in Roman, and although he only 

testified that Item 5 contained crack, that item weighed 

5.803 grams and therefore suffices to support Dent's 

sentence. By her own admission, Ali has virtually no 

experience in distinguishing between crack and other forms 

of cocaine base. Thus, her testimony that the cocaine base 

taken from the table where Dent was seated was packaged 

using the method commonly used to pack crack for street 

sale has substantially less probative value than the 

statement of the investigating officer in Roman. 

Nonetheless, when combined with Officer Cassidy's 

testimony, it satisfies the government's burden of proof. 

V. 

We must also reject Dent's claim that the prosecution 

failed to prove the quantity of crack involved in his crime 

because it used an unreliable process to calculate the 

crack's weight. The drugs attributed to Dent were Item 2, a 

foil-wrapped lump of crack, and Items 3 and 5, both of 

which consisted of several vials of cocaine base. Tanweer 

Ali tested and weighed the single lump. She also 

individually weighed four of the seventeen vials from Item 3 

and eleven of the 115 vials in Item 5. She then used the 

actual weights of these sample vials to extrapolate the 

weights of the vials in Items 3 and 115 respectively. Ali also 

testified that the substance in all of the vials had the same 

general appearance. We upheld this weighing procedure in 

United State v. McCutchen, 992 F.2d 22 (3d Cir. 1993). 

There, we concluded that "[i]f a defendant challenges a drug 

quantity estimate based on an extrapolation from a test 

sample, the government must show, and the court must 

find, that there is an adequate basis in fact for the 

extrapolation and that the quantity was determined in a 

manner consistent with accepted standards of reliability." 

Id. at 25-26. This standard does not require that the 

government produce statistical evidence supporting its 

sampling techniques. Id. at 26. "Rather, reasonable

reliability is the touchstone of the determination." Id. 

Here, the weight calculation was reasonably reliable 

because it was determined using an established procedure, 

the vials and their contents were substantially similar in 

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appearance, police seized all the drugs at the same time 

and place, and Ali randomly selected the vials weighed.2 See 

id.; United States v. Scalia, 993 F.2d 984, 989 (1st Cir. 

1993) ("[S]ufficient indicia of reliability may be found where 

a preponderance of the evidence demonstrates that (1) a 

proper `random' selection procedure was employed; (2) the 

chemical testing method conformed with an accepted 

methodology; (3) the tested and untested samples were 

sufficiently similar in physical appearance; and (4) the 

tested and untested samples were contemporaneously 

seized at the search scene."). 

VI. 

Finally, we will affirm the district court's decision denying 

Dent's motion to subpoena Sergeant Cassidy's personnel 

files. Before trial, Dent's counsel allegedly learned that 

another drug case in which Cassidy was scheduled to

testify had been dismissed amid allegations that Cassidy 

had committed misconduct in a drug investigation. 

Anticipating that Cassidy's personnel records could be used 

to impeach his credibility at trial, counsel sought to 

subpoena those records under Federal Rule of Criminal 

Procedure 17(c). After reviewing the personnel files in 

camera and concluding that they contained neither 

exculpatory evidence nor proper impeachment material, the 

district court granted the government's motion to quash the 

subpoena. See United States v. Dent, Cr. No. 92-223, slip 

op. at 6 (E.D. Pa. July 16, 1997). 

We review the district court's denial of Dent's Rule 17(c) 

motion for abuse of discretion. See United States v. Nixon, 

418 U.S. 683, 702 (1974). Thus we must uphold the district 

court's decision "unless it is clearly arbitrary or without 

support in the record." United States v. Hughes, 895 F.2d 

1135, 1145 (6th Cir. 1990). "Rule 17(c) was not intended to 

be a broad discovery device, and only materials that are 

`admissible as evidence' are subject to subpoena under the 

_________________________________________________________________ 

2. Dent argues that Ali's method of selecting which vials to weigh was 

not random. We disagree with his characterization of Ali's testimony, 

because nothing indicates that she selectively chose which vials to weigh 

in a manner that would increase the estimated total weight. 

 18 
rule." United States v. Cuthbertson, 651 F.2d 189, 192 (3d 

Cir. 1981). Thus although Brady v. Maryland, 373 U.S. 83, 

87-88 (1963), mandates that the prosecution disclose 

impeachment material that is exculpatory to the defendant, 

it does not require that the prosecution make thefile 

available for the defendant's general perusal. Instead, the 

government need only direct the custodian of thefiles to 

inspect them for exculpatory evidence and inform the 

prosecution of the results of that inspection, or, 

alternatively, submit the files to the trial court for in camera 

review. See United States v. Jennings, 960 F.2d 1488, 1492 

(9th Cir. 1992); United States v. Andrus, 775 F.2d 825, 843 

(7th Cir. 1985). The district court's in camera inspection of 

Cassidy's personnel files fully satisfied Brady's due process 

requirements. Moreover, we cannot conclude that its

determination that the files contained no impeachment or 

exculpatory material was clearly arbitrary or unsupported 

by the record. Accordingly, we hold that the district court 

did not abuse its discretion by granting the government's 

motion to quash Dent's subpoena of Cassidy's records. 

VII. 

For the reasons set forth in this opinion, we hereby 

affirm the district court's order in its entirety. 

A True Copy: 

Teste: 

 Clerk of the United States Court of Appeals 

 for the Third Circuit 

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